Background
Ky Kollin Walker filed a notice of appeal from Jefferson County Court at Law No. 3 in Trial Cause No. 25CCCR0709, but he did not arrange to pay for the clerk’s record as required by Texas Rule of Appellate Procedure 35.3(a)(2).
The appellate clerk notified the parties that the appeal would be dismissed for want of prosecution unless Walker arranged for the clerk’s record to be filed or explained why he needed additional time. Although the notice directed Walker to respond by July 15, 2026, the court received no response. Walker was represented by retained counsel, had not filed an affidavit of indigence, and had not otherwise shown that he was entitled to proceed without paying costs.
The Court’s Holding
The Ninth Court of Appeals dismissed Walker’s appeal for want of prosecution. The court concluded that Walker had not explained his failure to file the clerk’s record after receiving notice and an opportunity to respond.
The court relied on Texas Rules of Appellate Procedure 37.3(b) and 43.2(f), which permit dismissal when an appellant fails to pay or make arrangements to pay for the clerk’s record and does not establish entitlement to proceed without costs.
Key Takeaways
- An appellant must pay or arrange payment for the clerk’s record unless entitled to proceed without costs.
- Failure to respond to a warning that the record has not been filed may result in dismissal for want of prosecution.
- Representation by retained counsel and the absence of an indigence affidavit supported the court’s conclusion that Walker had not shown an exemption from appellate costs.
Why It Matters
The decision illustrates that filing a notice of appeal does not alone preserve appellate review. Attorneys must promptly arrange for the appellate record or establish indigence, and they must respond to deficiency notices by the stated deadline to avoid dismissal before the merits are considered.